Liability Aspects of Autonomous Aircraft ASAS-TN SEMINAR 13 October 2004 Francis SCHUBERT corporate secretary skyguide

page 2 C/SF/s040903/ , 12/7/2015 The Limits of Positive Air Traffic Control "Pilots are required to follow clearances issued by ATC whether there are operating under visual or instrument flight rules. " K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in-Command Concept - A Recipe for Disaster?", JALC, vol. 62/3, 1997 "The techniques used guarantee the safety of only a limited number of aircraft in any given space, sometimes with fairly rough and ready methods. Airspace thus has limited capacity which, to maintain the optimum level of safety, requires the organisation of queues on the ground or the diversion of traffic, and delays are created". Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, "The creation of the single European sky", COM (1999)yyy final, , p. 2.

page 3 C/SF/s040903/ , 12/7/2015 The promises of CNS/ATM Datalinks Datalinks will enable the exchange of sophisticated data, in particular between aircraft which should help aircrew to capture an enhanced traffic situation awareness. Satellite Satellite CNS applications offer a global coverage and provide aircraft with reliable and accurate position information. Airspace users will be able to fly preferred flight paths independently from the availability of ground infrastructure and airways network. Free Flight Free Flight – " A safe and efficient flight operating capability under instrument flight rules (IFR) in which the operators have the freedom to select a path and speed and real time... Restrictions are limited in extent and duration to correct the identified problem. Any activity which removes restrictions represents a move towards free flight. " Final report of RTCA Task Force 3: Free Flight Implementation, 25 (RTCA, Inc. ed., Washington, 1995) at 7

page 4 C/SF/s040903/ , 12/7/2015 Legal implications of Airborne Separation Assurance Systems (ASAS) ASAS as a technological revolution ASAS as an operational revolution ASAS as a legal revolution? – "Possibly, lawsuit may have a chilling effect on the desire for free flight". Allison K. LAWTER, "Free Flight or Free Fall", JALC, vol. 62, February-March 1997, No 3 – The need to return to basics The distribution of liability between the pilot and the air traffic controller

page 5 C/SF/s040903/ , 12/7/2015 Basic principles for traffic separation The "Pilot-in-command" principle – "The pilot-in-command of an aircraft shall have final authority as to the disposition of the aircraft while in command". ICAO Annexe 2, § 2.4. – "The pilot-in-command shall be responsible for the operation and safety of the aeroplane and for the safety of all persons on board during flight time" ICAO Annexe 6, part. I, chapt.3, para. 3.2, The "see and avoid" rule: – "pilots are required by regulation and common sense to maintain a sharp lookout so as to “see and avoid” other aircraft." PanAm v. Port Authority, 787 F.Supp. 312 (E.D.N.Y. 1992) at 318. – According to ICAO, "an aircraft shall not be operated in such proximity to other aircraft as to create a collision hazard"; ICAO Annex 2, § "Proximity".

page 6 C/SF/s040903/ , 12/7/2015 ATC instructions vs. the Pilot-in-Command principle "...a clearance issued by a tower (such as "cleared to land") either by radio or visual signal is permissive in nature and does not relieve the pilot from exercising a reasonable degree of caution in executing the provisions of the clearance." United States v. Schultetus (1960) 277 F 2d 322 "the pilot, after his clearance has been given... remains primarily responsible for the movement of his aircraft..." The pilot is "...required to follow his clearance, not blindly, but correlative with his duty to exercise care for his own safety...." Hartz v. United States, 387 F 2d 870 (1968) "Flight crew members have a continuing duty to be aware of dangers which they can perceive with their own eyes." Thinguldstad v. United States, 343 F.Supp. 551, 558 (S.D.Ohio 1972) "Pilots cannot fail to use their own eyes and ears to be aware from danger." Pan Am v. Port Authority, 787 F.Supp, 312 (E.D.N.Y, 1992)

page 7 C/SF/s040903/ , 12/7/2015 The pilot-ATC relationship Binding ATC instruction or clearance Pilot may request an alternative clearance if original clearance not suitable Pilot accepts Granted Not Granted Pilot must refuse clearance if it compromises safety Pilot complies with original clearance if not contrary to safety

page 8 C/SF/s040903/ , 12/7/2015 An immunity for ATC? "In particular, some courts have applied the Pilot-in- command concept to absolve ATC of liability in cases in which ATC could have prevented an accident by using due care". "Controllers were absolved of liability simply because the pilot did not follow the regulations, even in cases where prompt attention and warning by ATC might have prevented the accident." "This view might have been realistic when Orville and Wilbur first flew at Kitty Hawk, but in today's environment it is simply not logical." "A fair distribution of liabilities between air traffic controllers and pilots "…will require that courts abandon the Pilot-in- command concept in tort litigation." K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in- Command Concept - A Recipe for Disaster?"

page 9 C/SF/s040903/ , 12/7/2015 Aircraft Separation Pilot Visual separationATC provided separation

page 10 C/SF/s040903/ , 12/7/2015 "The rule… makes sense since the pilot, not Air Traffic Control, is actually in the cockpit and is therefore in the best position to judge the correct course of action with respect to that aircraft. Applying this line of reasoning to the impending Free Flight era, it could be argued then, that ultimate responsibility will remain with the pilot." Allison K. LAWTER, "Free Flight or Free Fall?" How new is really the Free Flight concept? – VFR separation rules – Visual approaches – Visual separations – VMC climbs maintaining own separation "With Free Flight's technology, pilots will be able to "see" other aircraft, even in IFR conditions". K. McChesney Goodman & S. Davis, "Free Flight & the Pilot-in-Command Concept - A Recipe for Disaster?" ASAS and the Pilot-in-command principle

page 11 C/SF/s040903/ , 12/7/2015 Aircraft Separation Pilot Visual separationATC provided separation Free Flight Separation

page 12 C/SF/s040903/ , 12/7/2015 Conclusions No change in the fundamental liability principles – "While technology has improved the Air Traffic Control system and made it more efficient, it has not changed the Pilot-in-command concept. Therefore, improved technology should not shift to air traffic controllers the pilot's burden to fly safely, nor should it cause Air Traffic Control to question a pilot's ability to use and rely on the cockpit's instrumentation". – Allison K. LAWTER, "Free Flight or Free Fall?" Changes in the way theses principles are applied – "It is likely that Free Flight will have little effect on the distribution of liability between ATS providers and pilots… from a liability perspective, the shift in responsibility is more a matter of degree than a fundamental change." – B. Elder, "Free Flight: The Future of Air Transportation Entering the 21st Century" – It is not the "see and avoid" rule or the "pilot-in-command" principle which should be questioned, but the criteria against which the pilots "reasonable behaviour" is to be assessed.

page 13 C/SF/s040903/ , 12/7/2015 Conclusions Change in the nature of aviation liability – Significant shift from human error liability to product or technical failure liability Possible misuse of legal arguments to disguise other factors – Safety concerns – Human factors "Pilots claim they do not want primary responsibility for maintaining separation… and controllers do not seem to want to relinquish the responsibility." – Allison K. LAWTER, "Free Flight or Free Fall" – Political factors "The task of implementing Free Flight, however, will probably prove to be more difficult politically than technically". – Allison K. LAWTER, "Free Flight or Free Fall"